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Many States Mandate Use of E-Verify System through Legislation, Executive Orders

Ellis_Island_photo_D_Ramey_Logan.jpgThe E-Verify system, which assists employers in verifying employees’ work eligibility, is now in use by hundreds of thousands of employers around the country. Federal immigration law requires employers to verify that employees and new hires are U.S. citizens or legal permanent residents, or that they have work authorization from the government. State and local governments may establish their own policies regarding the use of E-Verify. New York and New Jersey have no statewide laws regarding the system, but some states require state agencies, government contractors, and even private employers to use E-Verify.

U.S. citizens and permanent residents have work authorization by definition. People with certain nonimmigrant visas, such as H-1B or L-1, and people in programs like Deferred Action for Childhood Arrivals (DACA) may obtain a work authorization card from U.S. Citizenship and Immigration Services (USCIS). Employees must submit Form I-9 to their employers, along with specific documents to establish their identity and work authorization. Employers may be subject to civil or criminal penalties for employing unauthorized workers.

E-Verify, an online system that originally launched in 1997, is supposed to assist employers by allowing them to check an employee’s information against multiple government databases, rather than rely on their own visual inspection of the documents. USCIS touts the system’s “speed and accuracy” with regard to the information it provides, while critics have pointed to allegedly erroneous results.

About 20 states require some or all employers to use E-Verify, either through legislation or executive order. Legislation passed in Arizona in 2007 requires all employers in the state, not just state agencies and contractors, to use E-Verify. AZ Rev. Stat. § 23-214. The statute survived a court challenge claiming that it was superseded by federal immigration law. Chamber of Commerce v. Whiting, 563 U.S. ___ (2011). The Mississippi Legislature enacted a law requiring large employers to begin using the system by July 1, 2008, with mandated use gradually extending to all private employers by July 1, 2011. Miss. S.B. 2988 §§ 2(3)(d), 2(4)(b), 2(7) (2008 Reg. Sess.)

Some governors have used executive orders to require use of E-Verify by state agencies and contractors. Florida Governor Rick Scott issued Executive Order No. 11-116 (PDF file) in May 2011, which applies to “all agencies under the direction of the Governor.” The order “encourage[s]” all other state agencies to use the E-Verify system. Texas Governor Rick Perry issued Executive Order RP80 in December 2014, his final executive order before leaving office, mandating the use of E-Verify by all state contractors.

California law goes a step in the opposite direction by restricting local governments’ ability to require the use of E-Verify, except as specifically required by federal law or as a condition of receiving federal funding. CA Labor Code § 2812. Legislation enacted in Illinois in 2007 prohibited employers from enrolling in E-Verify until the system reached certain benchmarks for accuracy. A federal judge ruled the law was unconstitutional under the Supremacy Clause, since it conflicted with the federal statute that created E-Verify. United States v. Illinois, No. 3:07-cv-03261, opinion (C.D. Ill., Mar. 11, 2009).

Applying for immigration benefits requires careful preparation and a thorough understanding of immigration laws and regulations. Employment visa attorney Samuel C. Berger has represented individuals, families, and businesses in the Northern New Jersey and New York City areas for over 30 years. To schedule a confidential consultation, contact us today online or at (212) 380-8117.

More Blog Posts:

Federal Court Blocks City Ordinance That Penalizes Businesses Employing Undocumented Workers, New York & New Jersey Immigration Lawyer Blog, November 5, 2013
Revised I-9 Form Became Mandatory for Employers on May 7, 2013, New York & New Jersey Immigration Lawyer Blog, May 29, 2013
Natural Disasters and I-9 Compliance, New York & New Jersey Immigration Lawyer Blog, November 9, 2012
Photo credit: By WPPilot (Own work) [CC BY 4.0], via Wikimedia Commons.